Howey v. Fisher ( 1897 )

Moore, J.

The plaintiff sued the defendant to recover damages because of injuries received by her, caused by her slipping upon an icy sidewalk. The defendant was the owner of a dwelling house on Duffield street, in Detroit, which came out nearly or quite to the street line. There were eayes troughs upon this house, which were connected with a pipe which led to the sewer. It was claimed by the plaintiff that these eaves troughs had been out of repair for a long time, resulting in a dangerous accumulation of ice on the sidewalk, whenever it rained and froze, or when snow on the roof was thawed, followed by freezing weather. It was also the claim of the plaintiff that defendant had been notified of the situation. Defendant denied that the eaves troughs were out of repair, and claimed that new ones had been put up in June prior to the accident. Evidence was given tending to support the theory of each of the parties. The circuit judge submitted the case to the jury in the following charge:

“Gentlemen of the jury: This action, as I have stated, was brought for the purpose of recovering damages alleged to have happened to plaintiff on account of slipping upon an icy sidewalk in front of the premises of the defendant, or adjoining the premises of the defendant. The only question there is for you to consider, as I understand the law, is whether the eaves troughs were out of repair at the time this accident happened. The allegation in the declaration in this case claims that the eaves troughs upon the building were out of repair, and that, on account of their being out of repair, the water ran upon the sidewalk, and, freezing, became ice, and, on account of this condition of the eaves troughs and the ice formed upon the sidewalk, that the plaintiff, without negligence upon her part, slipped and fell. Now, gentlemen of the jury, you have heard the testimony in this case concerning the condition of these troughs. You have heard the testimony of these women, who have given their testimony concerning the condition, and about passing by there; but it is not your duty to consider any testimony, except such testimony as shall relate to the time that this accident occurred. If they have proved a condition of affairs, —that is, defective eaves troughs, being defective for want of repair,—and that that condition existed up to the time the accident happened, then, if you find that condition existed at that time, you are at liberty to enter upon the consideration of the other questions in this case, which I shall submit to you. You have also heard the testimony of the young man who came upon the stand, and said that he put these eaves troughs in at a certain time,—in June, I think,—-and that this accident occurred in January, if I am not mistaken; and if you shall find from the testimony, aud believe it to be true, that those eaves troughs were repaired in June, or made new, or put in good and proper condition and repair, and that they remained so up to the time of the accident, then your verdict must be for the defendant, because, if these eaves troughs were not out of repair, under the declaration in this case, the plaintiff would not be entitled to recover. You are to consider all the testimony on both sides of this case for the purpose of determining that condition, and then you must ascertain, further, that there was a reasonable time existing between the time at which this condition existed, or that Mr. Fisher had some knowledge of it,—that it was brought in some way home to him. There has been some evidence tending to show that, for a long time previous, these eaves troughs had been out of repair, and there is some little evidence tending to show that some notice of this condition of affairs was brought home to Mr. Fisher; .but if, subsequent to that time, this condition in the eaves troughs was remedied, then that notice would amount to nothing.”

After the jury had been out for a time, the judge recalled them, and directed them to find a verdict for the defendant, for the reason that there was no evidence of want of repair of the eaves troughs or conductor. The plaintiff brings the case here, and makes some assignments of error in relation to the exclusion of testimony.

We do not think the court was in error in excluding the testimony he did. The question is not, however, of sufficient importance to make it necessary to discuss it here. The important question in the case is whether the court was in error in directing a verdict for the defendant when there was conflicting evidence in relation to the condition of the eaves troughs. In Demill v. Moffat, 45 Mich. 410, it was held that a trial judge should never take a case from the jury on the evidence, unless it is very clear; and, when he does so, he should specify the particular ground or grounds of his ruling. This case has been followed by a long line of authorities: Goodale v. Bridge Co., 55 Mich. 413; People v. Eaton, 59 Mich. 559; Carver v. Plank-Road Co., 61 Mich. 584; Buhl Iron Works v. Teuton, 67 Mich. 623; Parrish v. Bradley, 73 Mich. 610; Blade v. Lee, 94 Mich. 127. We think the trial court was in error in directing a verdict for the cause stated by him.

Judgment is reversed, and new trial ordered.

Montgomery and Hooker, JJ., concurred with Moore, J.